David Baldus and the Legacy of McCleskey v. Kemp

Abstract

In McCleskey v. Kemp, 481 U.S. 279 (1987), the Supreme Court rejected a challenge to racial discrimination in the use of the death penalty. That challenge was based on a landmark study of race and capital sentencing in the state of Georgia by the late Professor David Baldus and colleagues. The legal holding in McCleskey stands, despite the fact that the author of the opinion, Justice Lewis Powell, later renounced it in retirement. It is sometimes described as the Dred Scott decision of the twentieth century. But on the empirical question that was as stake in McCleskey, Baldus has prevailed. Neither the Court in McCleskey, nor any justice at the time or since, has disputed his factual conclusion that many defendants in Georgia were sentenced to death because of their race, and especially because of the race of the victims of the crimes for which they were convicted. This was a remarkable achievement. It fundamentally changed our understanding of the role of race in criminal justice in the United States.

Keywords: criminal law, criminal procedure, death penalty, capital punishment, racial discrimination, Supreme Court, McCleskey v. Kemp, David Baldus